The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the “Services”) under the Biden Administration have launched an ambitious reconstruction of the Endangered Species Act (ESA)’s implementing regulations.  On October 27, 2021, the Services proposed rescinding critical habitat regulations finalized in December 2020, during the Trump Administration (U.S. Fish and Wildlife Service and NOAA Fisheries Propose Rescinding Critical Habitat Regulations Finalized in 2020). These actions follow the Biden Administration’s Executive Order 13990, which directed all federal agencies to review and address agency actions to ensure consistency with the current administration's objectives (86 Fed. Reg. 7037). 

Aiming to weaken regulations under the Endangered Species Act and other environmental statutes, the Trump Administration rolled back ninety-eight rules over its four years in office (Popovich et al. 2021). The Endangered Species Act, one of the most important conservation tools in the United States and, oftentimes, the last resort to save a species from total extinction, would have been severely impaired by the Trump Administration’s rule changes. By limiting ESA Critical Habitat protection to areas that currently support a species, foregoing historical occupancy information and recovery potential and factoring in economic data at the expense and potential extinction of a species, the 2020 rule revisions were antithetical to the intent of the Act. That is, to provide a program for the “conservation of threatened and endangered plants and animals and the habitats in which they are found” (Summary of the Endangered Species Act).

Under the current administration,  the  Services have identified two critical components for revision. 

First, the Services propose to rescind a Trump Administration final rule that defined the term “habitat” as the “abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species” in the context of a critical habitat designation (85 Fed. Reg. 81411). This definition was developed in response to a Supreme Court decision which held that land currently unoccupied by the species is not eligible for such protection (Weyerhaeuser Co. v. United States Fish & Wildlife Serv., 139 S. Ct. 361 (2018)). However, excluding unoccupied areas that have the necessary resources and conditions to support a species or could in the future through restoration efforts or other changes would significantly restrict a species ability to recover and survive. In  many cases, subsequent generations would not have sufficient protected habitat in which to disperse thereby rendering conservation efforts futile.  

If successful, the Services will return to their prior approach, where there was no regulatory definition of “habitat,” allowing the Services to designate areas as critical habitat even if it currently lacks conditions necessary to support the relevant species (85 Fed. Reg. 81411). 

Secondly, the Services propose to rescind the final rule that revised the FWS’s process for considering exclusions of areas as critical habitat (85 Fed. Reg. 82376). The ESA authorizes the Services to exclude particular areas from a designation of critical habitat, if the benefits of exclusion outweigh the benefits of inclusion, taking into account economic, national security, and other impacts of the designation (Id.). The Trump Administration, however, issued a final rule specifying the process for exclusion determinations, drastically reducing the discretion that the Services have in excluding areas from a future designation of critical habitat (Id.). The proposed rule, if successful, will revert to the original process for considering exclusions of areas as critical habitat (Id.).

Both of these proposed revisions will undergo the rulemaking processes before being finalized, including publication in the Federal Register, 30-day public comment periods (through November 26, 2021), and coordination with federally recognized Tribes. The Services may issue final rules by early 2022.

The Defend Them All Foundation applauds the Biden Administration for restoring critical protections for endangered species in the United States, as well as restoring the Endangered Species Act to its original intent. 

We urge the public to submit comments on the proposed rules at: https://www.federalregister.gov/documents/2021/10/27/2021-23214/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-endangered-and-threatened (regarding the “habitat” definition) and https://www.federalregister.gov/documents/2021/10/27/2021-23011/endangered-and-threatened-wildlife-and-plants-regulations-for-designating-critical-habitat (regarding the critical habitat definition).

References

1. Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat, 85 Fed. Reg. 82376 (Dec. 18, 2020), https://www.federalregister.gov/documents/2020/12/18/2020-28033/endangered-and-threatened-wildlife-and-plants-regulations-for-designating-critical-habitat.

2. Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 85 Fed. Reg. 81411 (Dec. 16, 2020), https://www.federalregister.gov/documents/2020/12/16/2020-27693/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-endangered-and-threatened.

3. Endangered Species Act of 1973, U.S. Fish & Wildlife Service, https://www.fws.gov/endangered/esa-library/pdf/ESAall.pdf.

4. Executive Order 13990: Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 20, 2021), https://www.federalregister.gov/documents/2021/01/25/2021-01765/protecting-public-health-and-the-environment-and-restoring-science-to-tackle-the-climate-crisis.

5. Popovich et al., The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List., The New York Times (Jan. 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.

6. Summary of the Endangered Species Act, United States Environmental Protection Agency, https://www.epa.gov/laws-regulations/summary-endangered-species-act.

7. U.S. Fish and Wildlife Service and NOAA Fisheries Propose Rescinding Critical Habitat Regulations Finalized in 2020, U.S. Fish & Wildlife Service (Oct. 26, 2021), https://www.fws.gov/news/ShowNews.cfm?_ID=37041.

8. Weyerhaeuser Co. v. United States Fish & Wildlife Serv., 139 S. Ct. 361 (2018).